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only part of the relief sought, it appeals., petition, to transport its coal free of charge. Reversed, with directions.

In the judgment the lower court decided H. C. Gillis, of Williamsburg, for appel- that the Eureka Coal Company was entitled lant. Rose & Pope, R. L. Pope, and R. L. to free access to the spur railroad track of Pope, all of Williamsburg, for appellee.

the defendant described in the pleadings and

evidence and to tap said track at any place CARROLL, J. The appellant, the Eureka it desired, and to ship and transport free of Coal Company, owns the coal in three bodies charge over this spur all coal and other of land known as the Gatliff Coal Company merchantable things in and on the tract of tract, the J. M. Sharp tract, and the Ange- land which we may describe as the Angeline line Bennett tract. The J. M. Sharp and the Bennett tract, and further decided that it Gatliff Coal Company tracts lie back of the was not entitled to ship or transport over Angeline Bennett tra'ct. The appellee, this spur track any coal or other merchantKentucky-Tennessee Coal Company, owns a able things from any other land except short railroad spur connecting its coal prop- this Angeline Bennett tract, “either free of erties with the Louisville & Nashville Rail charge or by paying any sums as trackroad Company's line of road. This spur age, rental or freight charges, unless with track touches the Angeline Bennett tract the consent of tbe defendant.” The court owned by the Eureka Coal Company, and the further adjudged that the Eureka Coal Eureka Coal Company, desiring to haul the Company should recover its costs incurred in coal that it might mine from the Sharp, establishing its right to tap and use the Gatliff and Bennett tracts to the Louisville & Nashville Railroad, brought this suit for spur track to ship out its coal from the An

geline Bennett land, and that the defendant the purpose of compelling the Kentucky-Ten- should recover its costs in defeating the nessee Coal Company to permit it to use the claim of the Eureka Coal Company to the spur railroad in order that it might get its right to ship coal from other land over this coal out to the Louisville & Nashville track. track. To so much of this judgment as deIn its petition it averred that it had no oth: nied the right of the Eureka Coal Company er way of shipping or transporting its coal to ship coal from tracts others than the from its mine to a railroad or market ex. Angeline Bennett tract, either free of charge cept over this spur track. The prayer of the petition was that the court

or by paying reasonable charges therefor,

and to so much of the judgment as awarded "award it a perpetual, mandatory injunction, enjoining and requiring the defendant to give, costs against it, the Eureka Coal Company furnish, and permit the plaintiff the right and prosecutes this appeal. privilege of free access to, and the right to tap, It will be seen from the judgment that and the free use of all the spur tracks, side the Eureka Coal Company was given all tracks, and other tracks, built and maintained, or which shall hereafter be built and main: the rights and privileges that it prayed for tained, by the defendant on the land conveyed as to coal on the Angeline Bennett land, but by Angeline Bennett to A. R. Humble as set was denied the right to ship over the spur out in this petition, and from said land to the track, even upon the payment of reasonable Louisville & Nashville Railroad, and the right and privilege to ship and transport over said charges therefor, any coal from the Sharp tracks, free of chargc, any and all coal and or Gatliff lands, unless with the consent of other merchantable things from plaintiff's mine the Kentucky-Tennessee Coal Company. So and elsewhere to said Louisville & Nashville Railroad, and enjoining the defendant from in that the only matter here in issue is so much any way preventing or interfering with plaintiff of the judgment as denied the right of the in so doing."

Eureka Coal Company the use of the spur In its answer the defendant denied all the track for the shipment of its coal from the averments of the petition. After this the Sharp and Gatliff lands upon the payment of Eureka Coal Company filed an amended peti- reasonable charges for the use of the spur tion, in which it amended the prayer of its track; and there really seems to be no suboriginal petition by asking that, if the court stantial issue between the parties as to the should hold that it was not entitled to trans- right to ship coal from the Sharp and Gatport all, or any part, of the coal owned by liff tracts over this spur upon the payit under its leases over the spur track of ment of reasonable compensation therefor. the defendant free of charge, it be permitted Because counsel for the Eureka Coal Comto transport said coal over said track by pany in his brief says that "it is willing to paying to said defendant, or its successors, pay appellee a fair price for the use of its or assigns, a reasonable price per ton for the spur track in hauling coal over same, but use of said track to be fixed by the court, appellee refuses to permit appellant to haul and for all necessary and proper orders to or ship any coal from the Sharp and Gatliff secure plaintiff in such right without inter- tracts over its spur track," and counsel for ference by defendant. It will be noticed that appellee say in their brief that there is no this amended petition merely amended the objection to the shipment of coal from the prayer of the petition by asking that the Sharp and Gatliff lands over this spur court give it the right to transport coal over track upon the payment of reasonable comthe spur track upon payment by it of com- pensation therefor by the Eureka Coal Compensation to be fixed by the court instead of pany, it would thus appear that the only giving it the right, as asked in the original matter in dispute between these parties is,

What is reasonable compensation for the ages for trespass upon lands, requested instruc service desired by the Eureka Coal Com- tion on equitable estoppel was properly refused. pany? This issue we are asked by counsel 3. PLEADING C258(3)-AMENDMENT-AFTER

PARTIAL TRIAL, for the Eureka Coal Company to determine,

In action to enjoin trespass and to recover but we decline to do so. It should have damages, which was transferred to the common been determined in the lower court before pleas court for trial of the law issues, it was this appeal was prosecuted, and doubtless not an abuse of discretion for the chancellor,

when the judgment of the common pleas was would have been if the court had been asked certified, to refuse to allow an amendment to the to refer the case to a commissioner for the answer pleading equitable estoppel. purpose of reporting what would be reasonable compensation, or had been expressly re

Appeal from Circuit Court, Jefferson quested by motion to fix itself reasonable County, Common Pleas Branch, Second Di

vision. compensation. But it does not appear from the record that the Eureka Coal Company

Action by Mary Wiser and others against moved or requested the court to do either Moses Fort and others, which was transof these things or made any request that ferred to the common pleas branch, wherein

judgment was rendered for plaintiffs and compensation be fixed by the lower court.

It is true that in the amended petition, certified to the chancery court, which entered heretofore referred to the Eureka Coal Com- judgment in conformity therewith, and de pany prayed that, if the court held that it

fendants appeal. Affirmed. was not entitled to free use of the spur track, Chas. Carroll, of Louisville, for appellants. it be permitted to ship coal over this track Hugh B. Fleece, of Louisville, for appellees. by the payment of a reasonable price to be fixed by the court, and some evidence was CLAY, C. Plaintiffs, Mary Wiser and othtaken on this subject; but, as we have said, ers, brought this suit in the Jefferson circuit this prayer does not seem to have been fol- court, chancery branch, against W. Aaron lowed up by any request or motion in the Fawcett, Moses Fort, and the E. I. Du Pont lower court, and in the judgment the lower de Nemours Powder Company, to enjoin and court apparently ignored this amended peti- recover damages for trespass on a small strip tion by adjudging that the Eureka Coal Com- of land lying in Jefferson county. On motion pany could not use this spur track for the of the defendants, the case was transferred purpose of getting out its coal from the to the common pleas branch, Second division, Sharp and Gatliff lands unless by the con- for trial of the common-law issue of title. sent of the Kentucky-Tennessee Coal Com- The jury found that the land belonged to pany. It would therefore appear that, even plaintiffs, and gave damages against Fawcett if the Eureka Coal Company had offered to in the sum of $5, and against Fort and the pay a reasonable price for the use of the powder company jointly in the sum of $200. spur track to ship its coal from the Sharp Upon this verdict a judgment was entered by and Gatliff lands, it could not do so unless the common pleas court, and the trial, verthe Kentucky-Tennessee Coal Company con- dict, and judgment were certified to the chansented that it might exercise this privilege, cery court, which entered judgment in conand hence it was necessary for the Eureka formity to the judgment of the common pleas Coal Company to prosecute this appeal in

court. Fort and the powder company aporder to obtain the right upon the payment peal. of reasonable compensation to ship its coal

It appears that in the year 1854, John Wisfrom the Sharp and Gatliff tracts.

er owned a tract of land containing 160 acres. Wherefore the judgment is reversed, with In that year he conveyed 60 acres of this directions to the lower court to fix and de-tract to his son Davis Wiser, and 100 acres termine a reasonable compensation to be

to his son, Anthony Wiser, By agreement charged the Eureka Coal Company for the

between Davis Wiser and Anthony Wiser, privilege of shipping coal from the Sharp their lands were processioned in the year and Gatliff lands over this spur track.

1859, and the beginning corner of the dividing line fixed at a large stone.

Plaintiffs are the heirs of Davis Wiser, FORT et al. v. WISER et al.

who died in the year 1890, leaving ten chil(Court of Appeals of Kentucky. March 8, 1918.) dren. By a proceeding in the Jefferson coun1. APPEAL AND ERROR 1000 – REVIEW ty court during that year, the lands of Davis VERDICT-EQUITABLE NATURE OF ACTION. Wiser, including the 60 acres conveyed to him

An action to enjoin trespass and to recover by his father, were partitioned among his damages is not purely equitable, in which the verdict of the jury on an issue of fact is children and deeds executed to them for their merely advisory and may be disregarded by the respective portions. A small stone 2492 feet chancellor, and the jury's verdict will not be east of the corner established by the procesdisturbed unless flagrantly against the evidence. sioners was fixed as the corner stone of the 2. TRIAL C251(3)-INSTRUCTIONS CONFORM 60-acre tract. ITY WITH PLEADINGS. In the absence of pleading of equitable es

Of the 100 acres belonging to Anthony Wistoppel in an action to enjoin and recover dam- Jer, Aaron Fawcett acquired title to 1 acre,

and Moses Fort to 29 acres, immediately ad- | 169 Ky. 213, 183 S. W. 483; Hill v. Phillips, joining the 60-acre tract of Davis Wiser now 87 Ky. 109, 7 S. W. 917; Morawick v. Mor. owned by the plaintiffs.

tineck, 128 Ky. 155, 107 S. W. 759. It is A few years ago, the powder company en- therefore only necessary to say that we have tered into a contract with Fort, by which, carefully examined the evidence, and, in our in consideration of the payment of a certain opinion, it is sufficient to sustain the verdict. sum, Fort permitted it to build a road from During the trial in the common pleas the county road leading to the company's court, the court refused to give the following land on which its depot is located. Plain- | instruction offered by the defendants: tiffs contend that this road was located on

"If the jury believe from the evidence that their land, while the defendants contend that plaintiffs permitted defendants, Fort and powder it was located on the land of Fort.

company, to erect valuable and lasting improveIn their petition plaintiffs set forth the ments upon the lands in controversy, and this

with knowledge of plaintiffs, and plaintiffs made proceedings by which the lands of Davis and no effort to prevent said improvements, and failAnthony Wiser were processioned, and al- ed to claim the land, then they are now estopped leged, in substance, that the dividing line from claiming same, and as to said land covered running from the large stone to the stone cor- l by said improvements, they should find for de

fendants, l'ort and powder company." ner of L. M. Payne, as fixed by the processioners, was the true dividing line. They fur [Z] In reply to the contention that the ther alleged that the commissioners, in the refusal of this instruction was error, it is proceeding to partition the lands of Davis only necessary to say that the instruction Wiser among his children, made a mistake presents an issue of equitable estoppel, and in fixing the beginning corner of the dividing no such issue was pleaded by the defendline between the lands of Davis and Anthony ants. Wiser at the small stone, and that plaintiffs Another error relied on is that the jury's did not discover the mistake until shortly be finding of $200 damages was excessive. As fore the bringing of the suit. The defendants the dimunition in the value of the use of denied the material allegations of the peti- the land was fixed as the measure of plaintion, and in the second paragraph pleaded af- tiffs' damages, and as we have no means of firmatively that after the dividing line was determining with any degree of certainty established by the processioners in the year the precise effect of the construction of the 1859, Anthony Wiser, being dissatisfied with road on the use of the land, we conclude it, had a second line run, beginning at the that the question of damages was peculiarly small stone, and that this was the correct for the jury which heard the evidence, and line, and was thereafter recognized as the are not inclined to hold that its finding was established line. They further pleaded that excessive. in the proceeding to partition the lands of (3] Lastly it is insisted that the chancellor Davis Wiser, the line contended for by de- upon the return of the case from the common fendants as the true dividing line between pleas court, erred in refusing to permit de the lands of Davis and Anthony Wiser was fendants to file an amended answer pleading fixed by the commissioners as the western estoppel. If the defense of equitable estopboundary of the land partitioned, and the pel had been properly pleaded in the original deeds conveying to that line were made to answer, plaintiffs would have had the right and accepted by, the heirs of David Wiser, to insist on a decision of that issue before including the plaintiffs, and that they entered the case was transferred to the common upon and took possession of the lands of Da- pleas court for the trial of the legal issue. vis Wiser as described in said deeds. In the While defendants did allege in their original same connection they pleaded adverse posses- answer that the commissioners in the partision to the strip of land in controversy up tion proceeding fixed the western boundary to the line fixed by the commissioners, and of the land of Davis Wiser upon the line now by the survey alleged to have been made aft- claimed by defendants as the true dividing er the establishment of the line by the pro- line between the lands of Davis Wiser and cessioners in 1859.

Anthony Wiser, and that plaintiffs accepted [1] We deem it unnecessary to detail the deeds conveying their respective tracts up evidence heard by the jury in the common to that line, it is clear that these allegations pleas court. This is not a purely equitable bore merely on the location of the dividing action, in which the verdict of the jury on an | line and on the question of adverse posses. issue of fact is merely advisory, and the sion, and were not sufficient to raise the chancellor may disregard the verdict and en- issue of estoppel. The defendants having ter judgment in conformity with his view failed to present the issue of estoppel at the of the weight of the evidence, but a case in- proper time, and having risked the question volving a distinct legal issue which either of title and damages to a tribunal of their party had the right to have tried by a jury. own choice, it was not an abuse of discreIn such a case the verdict of the jury is to be tion on the part of the chancellor on the treated as in ordinary jury trials, and will return of the case after the finding against not be disturbed unless flagrantly against the the defendants, to refuse to permit them to evidence. Winchester et al. v. Watson et al., file an amended answer for the purpose of

having a second trial on a different phase , came in contact with the live wire on the of the same issue previously decided by the other end of the insulator. He did not know Jury.

that the wire was charged, and the foreman Judgment affirmed.

did not warn him of the danger. He further says that the insulator was not reasonably safe for the purpose for which it was being

used, because it had no guards on the end ELKHORN MINING CORP. v. PITTS.

to prevent it from slipping through his hand. (Court of Appeals of Kentucky. March 5, He also testified that in doing dangerous 1918.)

work like that in which he was engaged, the 1. MASTER AND SERVANT 293(14)—SAFE APPLIANCES-QUESTION FOR JURY.

company should have cut off the current by Whether a master used due care to pro- using the switch at the substation or by proride safe appliances to a servant putting up viding additional switches at the terminal electric trolley wires in the mine held a question pole. According to the evidence for the defor the jury. 2. MASTER AND SERVANT 201(1)-INJURIES the current was on, but the fact that the

fendant, plaintiff was not only informed that TO SERVANT-MASTER'S NEGLIGENCE-CONCURRENCE WITH FELLOW SERVANTS' NEGLI- motors were running and the fan near by GENCE.

was in operation plainly indicated that such If injury to a servant is due to concurring negligence of the master and a fellow servant,

was the case. It was also shown that the the master is liable.

current could not be cut off at the substation 3. MASTER AND SERVANT 287(11)-QUES- without shutting down its mines. TIONS FOR JURY--CONCURRING NEGLIGENCE [1] It is the contention of the company OF MASTER AND FELLOW SERVANT. Whether master's negligence in providing

that it was entitled to a peremptory instrucimproper insulator or failing to cut the cur- tion, not only on the ground that no neglirent was a concurring cause of the servant's gence on its part was shown, but on the furinjury held for the jury.

ther ground that plaintiff pleaded and proved Appeal from Circuit Court, Floyd County. that his hand was caused to come in con

Action by Samuel Pitts against the Elk- tact with the live wire by the jerk given by horn Mining Corporation. Judgment for his fellow employés. It appears that plainplaintiff, and defendant appeals. Affirmed. tiff alleged, not only that the insulator was

Allie W. Young, of Morehead, Ed. c. defective, but that the company was negliO'Rear, of Frankfort, and Smith & Combs, gent in not releasing the voltage from the of Prestonsburg, for appellant. May & May, live wire. We are not prepared to say as a of Prestonsburg, for appellee.

matter of law that the company performed

its whole duty by furnishing the insulator CLAY, C. This is a personal injury ac. which plaintiff was directed to hold. In attion, in which plaintiff, Samuel Pitts, recov. taching and tightening the wire it was liable ered of the defendant, Ellhorn Mining Cor. to be pulled or jerked, and if the insulator poration, a verdict and judgment for $500. was not guarded, even a slight jerk might be The defendant appeals.

sufficient to cause the hand of the person At the time of the accident, plaintiff was holding it to slip and come in contact with assisting the company's foreman and two the live wire. In view, therefore, of the other employés in extending a trolly wire. dangerous instrumentality which plaintiff New poles and cross-arms had been erected, was required to handle, we conclude that and additional wire had been placed on the plaintiff's evidence, to the effect that the inground along the proposed extension. The sulator should have been protected by guards, mine was in operation, and the old trolly or the current should have been released wire on the line being extended was in use from the live wire was sufficient to make it and charged with 250 volts of electricity. a question for the jury whether the company That wire was tied in one end of a wooden used the utmost degree of care to provide insulator about a foot in length. This in- plaintiff with safe appliances for work, sulator was attached to a turnbuckle, a con [2, 3] This conclusion disposes of the furtrivance for tightening the wire, and the ther contention that a peremptory instructurnbuckle was attached to the last pole. tion should have gone, because the accident The insulator was a piece of wood with an was caused by the negligence of plainiron ring in each end, and was used to break tiff's fellow servants. It is only where the the current. When the additional wire was injury is caused solely by the negligence of ready to be put up, Mosley, the foreman, loos- a fellow servant that the master is exempt ened the turnbuckle from the end of the ter- from liability. If the injury be due to the minal pole and from the end of the insula- concurrent negligence of the master and a tor. He then attached the new wire to the fellow servant, the master is liable. Kenend of the insulator, and handed the insula- tucky & I. Bridge Co. v. Sydnor, 119 Ky. 18, tor to plaintiff to hold until the other two S2 S. W. 989, 26 Ky. Law Rep. 951, 68 L. R. A. employés could tie the wire to the next pole 183, 7 Ann. Cas. 1177; Bell-Knox Coal Co. v. 25 feet away. Plaintiff says that the men Gregory, 152 Ky, 415, 153 S. W. 465; A. Bentjerked the wire, and his hand slipped and ley & Sons v. Bryant, 148 Ky. 634, 147 S. W.

402; Fluhart Collieries Co. v. Meeks, 160 Ky. SAMPSON, J. This action was institut127, 169 S. W. 686; Siegel, Cooper & Co. v. ed in the Mason circuit court by Omar FluFrank Trcka, 218 Ill. 539, 75 N. E. 1053, 2 harity through his guardian against Bates & L. R. A. (N. S.) 647, 109 Am. St. Rep. 302. Rogers Construction Company, a corporaHere the jerk given the wire by plaintiff's tion, to recover of it damages for injury to fellow servants would not have caused plain- his person, alleging that while in the employ tiff's injuries if the insulator had been prop- of said company he was, through the careerly guarded or the current had been released lessness and negligence of its foreman, burnfrom the live wire. If, therefore, it was a ed in and about his face, eyes, hands, and question for the jury whether the company other parts of his body by an explosion ocwas negligent, it was likewise a question for casioned by the foreman of appellant bringthe jury whether the company's negligence ing a lighted lantern near where appellee was one of the concurring causes of plain- was at work repairing an acetylene light. tiff's injuries. Hamel v. Newmarket Mfg. Fluharity was a young man about twenty Co., 73 N. H. 386, 62 Atl. 592.

years of age, and was engaged by the comWhile the instructions are complained of, pany as an electrician, but had been directed we conclude that on the whole they fairly by the foreman to repair the acetylene light presented the law of the case.

upon which he was at work at the time of Complaint is also made of the court's re- his injury. In order to make repairs it was fusal to require plaintiff to give bond for necessary for him to dismantle the light, costs on the ground of nonresidence. In take it to pieces, and remove some exhausted reply to this contention it is sufficient to carbide lumps from the container. He had say that we see no reason to disturb the removed the tube to a distance which he court's finding that plaintiff was a resident regarded as safe before beginning the work. of Kentucky.

He then reached down in the tube, trying to Judgment affirmed.

get the carbide from the bottom, his hand near the bottom, he at the time attempting to look in the tube, when appellant's fore

man, Bolton, with a lighted lantern came up BATES & ROGERS CONST. CO. V. FLUHARITY'S GUARDIAN.

behind him and the lighted lantern coming

in contact with the gas which emanated (Court of Appeals of Kentucky. March 8, from the carbide caused an explosion, the 1918.)

fire from which dashed into the face and 1. DAMAGES 157(6) SPECIAL PLEADING eyes of appellee, burning him severely. By AND PROOF.

his petition and amended petition he sought Under allegations that plaintiff servants to recover $200 for loss of time, and $500 eyes had been permanently injured, etc., evidence that the injury interfered with plain- for board, medical services, glasses, and tiff's preparations to become a cartoonist held treatment for his eyes, and $2,300 for permaadmissible although special damages were not nent injury and loss of power to earn monpleaded.

ey, a total of $3,000. The defendant com2. EVIDENCE 537 OPINION EVIDENCE EFFECT OF.

pany denied its negligence, and pleaded conIn a servant's action for injuries to his eyes, tributory negligence on the part of plaina practicing optician who had studied in repu- tiff; assumed risk, and that appellee was intable schools, etc., held competent to give expert jured through the negligence of a fellow testimony regarding the effect of the injury, although he was not an oculist.

servant. A jury was impaneled, and upon 3. Trial On 267(4)—INJURIES TO SERVANT-hearing awarded appellee $1,500 in damages. SUBSTITUTED INSTRUCTIONS.

[1] Complaint is made on this appeal that A conventional contributory negligence in appellee was permitted to introduce evidence struction held sufficiently concrete to justify the of his ability as a cartoonist and his preprefusal of defendant employer's requested instruction that plaintiff could not recover if his aration to follow that work as a vocation. own negligence contributed to his injury, etc. When plaintiff was called as a witness and 4. MASTER AND SERVANT m289(27)-INJURY had answered some preliminary questions,

TO SERVANT – JURY QUESTION - CONTRIBU- he was then asked what schools he had atTORY NEGLIGENCE.

Evidence that defendant employer's foreman tended and what vocation or profession he brought a lighted lantern near plaintiff serv- had begun to prepare himself for, and he ant who was repairing an acetylene light, caus- answered: ing an explosion, etc., held to make plaintifi's "I was preparing myself in the future for contributory negligence a jury question.

being a cartoonist, along those lines, and I was Appeal from Circuit Court, Mason County. and some of the various papers, such as Judge,

getting pretty good consideration around_town Action by Omar Fluharity, by his guard- Cincinnati Times-Star, and Chicago Herald." ian, against the Bates & Rogers Construction

The defendant company objected to this Company. Judgment for plaintiff, and de- question and answer, but the objection was fendant appeals. Affirmed.

overruled. It now complains that it was erStanley Reed, of Maysville, and Fred ror to allow the admission of this and simiForcht, of Louisville, for appellant. A. D. lar evidence because, as it contends, no reCole, of Maysville, for appellee.

covery can be had for such special damage,

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